Whether Permissible or not
By Dr. Md. Fayaz Khan
There are various reverse opinion of writers of mohammadan law about Adoption under Mohammadan Law. Some often have the view that adoption is unknown to Mohammedan law. Justice M. Hidayatullah in his book Mulla Principles of Mohammadan Law has observed that the Mohammadan law does not recognize adoption as a mode of filiations1. But some of them have the view that where custom is given priority by legislation over general Mohammadan law as in the Punjab, Oudh and some other places a special family or tribal custom of adoption will, if proved, prevail over that law B.R. Verma in his commentary on Mohammadan Law has stated that “Adoption shall not confer upon any person the status of a child except in the cases where subject to the provisions of the Shariat Act (XXVI) of 1957 there is valid custom of adoption and where it is permitted by the provisions of any law for the time being in force2.
According to some authors like Amir Ali Wilson, Abdur Rahman, the Holy Quran Prohibits adoption. It appears that the impression that adoption is not permissible amongst Muslims or adoption is not known to Muslim.
The Custom of adoption was prevalent in Pre-Islamic Arabia based on a sense of Comrade-Ship in arms in some instances. The system of adoption seems to have received some recognition by the adoption of Zaid, Even the prophet Mohammad himself took Zaid, the son of Haris in adoption3.
The custom of adoption remained prevalent amongst Muslims. It is however, on the basis of a verse in the Holy Quran, if has been held by the various authors that the prophet himself disapproves adoption. The relevant verse of Quran on contained in S.33, A. 4-6 reads as under, ” Allah has not made for any man two hearts in his breast nor has he made your wives whom ye divorce by Zihar your mothers nor has he made your adopted sons your sons, such is (only) your (manner of) speech by your months. But Allah tells (you) the truth and he shows the (right) way call them by after their fathers: that is just in the sight of Allah but if ye know nor there father’s names (then they are) your brother’s in faith, or your friends but there is no blame on you if ye make a mistake therein: (what counts is) the intention of your hearts: and Allah is oft-forgiving, most merciful. The prophet is closer to the Believers than their own selves and his wives are their mother’s Blood relations among each other have closer personalities, in the Book of Allah than (the Brother hood of) believers and Muhajirs4.
From the above passage of the Quran, if has been asserted that adoption in technical sense is not allowed in Muslim law. It is submitted that a careful reading of this passage will show that if no where prohibits adoption, the intention of the prophet was that if a man called another’s son “his son” if might create complication with natural and normal relationship if taken too literally. The idea of the prophet was to convey that the real son is a real son and adopted son is not a real son.
To treat an adopted son, as a real son if one has no real son is not a mistake as what counts is the intention of the heart. Even if according to this verse, the adopted son are to be called by the name of their father and if their father’s name is not known then to call then as mulla or brother, this verse no where says that if any adoptions make by a man who has no son of his own, if will be against the dictates of Allah of according to the prophet if a slave whose father’s name is not known is to be treated as brother then it is not permissible for an issueless person to treat a boy as his (adopted) son ? But if you call him as your son if will not be unjust nor Allah will be displeased. The Prophet has not barred adoption in absolute terms. What is intended is erecting of false relationship to the detriment or loss of true bloods relation. The believers should follow him rather than fathers, mothers or brother where there is conflict of duty. The doctrine advanced by the Prophet is based on the situation where there is already a natural born son to a father what if there is no son to a man? Can he not adopt a son for himself and treat him like a son ? It may be noted that the Prophet has envisaged that in case of slaves, they should be known by their father is name. As will be discussed later on the custom of adoption is valid amongst Muslims, and Shariat law does not prohibit such custom of adoption. If the above verse is interpreted to mean that the prophet has prohibited adoption it can not be assumed that what is prohibited by the Holy Quran can be permissible by custom and usage. The conclusion therefore, is that the Holy Quran no where prohibits adoption.
It is very interesting to note that the custom of adoption is prevalent amongst many classes of Muslims in India. It has been prevalent in Punjab5, Sindh6, Ajmer7, Kashmir8, Bombay9, Madhya Predesh10 and in Rajasthan11. As already pointed out above the prophet appears to have recognized the custom of adoption at the time when he adopted Zaid.
It is pertinent to mention that the custom of adoption, which is prevalent amongst Mahavatan community of Muslims in Rajasthan is quite similar to that of adoption system amongst Hindus. In Abdul Hakim V. Gappu Khan12, the Rajasthan High Court has observed as under besides the above decisions, when cover a period of 50 years. There is over whelming oral evidence in support of the custom of adoption among the Mahavats, which remains and the several instances mentioned by the defendants, witness witnesses were not negatived by the evidence lad by the plaintiffs.
In Nenoo Khan V. Mst. Sugani13, it was held by the same high court that by virtue of custom, Muslims might also have system of adoption. In mst. Bibi V. Syed Ali14, the same high court has considered the matter in detail and has come to the following findings:
(i) Adoption is, as a rule, not unknown to Muslim Law.
(ii) By Virtue of Custom Mohammedans many also have the system of adoption.
3. A Muslim who alleges that by custom he is subject of adoption must prove it.
Thus, there is an overwhelming number decisions to support the contention that Muslim Law recognizes adoption by custom.
The Muslim Personal Law (Shariat)
Application Act, 1937 and its Effect on Adoption
The Muslim Personal Law (Shariat) Application Act, 1937 to make Provision for application of Muslim Personal Law (Shariat) to Muslims Section 2 of this Act Provides as under – Notwithstanding any Customs of usage to the contrary in all questions (save question relating to agricultural Land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of personal Law, marriage, dissolution of marriage, including Talaq, Ila Zihar, lien, khula and Mubarat, maintenance, dower, guardian ship, gifts, trusts and trust properties and wakfs (other than Charities and Charitable institutions and Charitable and religions endowments) the rule of decision in cases when the parties are Muslim shall be the Muslim personal Law (Shariat).
Which are to be governed by Muslim Personal Law notwithstanding any custom or usage to the contrary. The matters enumerated in this section do not include adoption. For the interpretation of this section of the shariat Act, reference can be made to two division bench judgment of Madras High Court in Puttiya Purahil Aburrahimian karnaven V. Thayath Kancheentavida Avoomma15 and Maulvi Mohd. V. Mahbooba Begam16, where it has been held that the non-mention of other subjects such as adoption in respect of which a Valid Custom could govern and be binding on the parties does not mean that it is not permissible for the parties to rely on such a valid custom if there is one.
The Mysore High Court has also followed the above mentioned view of the Madras High Court in Hajee Abdul Sattar Sait v. Control of Estate Duty17.
It appears that in the Kashmir Valley, some Muslim families, many be due to the proximity of the Hindu Population, seem to adopt Children, especially if they do not have their own natural born Children, A case to this effect has been reported as Yaqoob Laway and others V. Gulla and others18. The Shariat Act of 1937 Extends to the whole of India except the State of Jammu and Kashmir, nevertheless adoption amongst Muslims in the Kashmir Valley seems to be in vogue as is indicated by the term, Pisarparwardhah (Which literally means, adopted son). This could be only as a matter of custom, and not by way of any established Principle recognized under the Islamic Law. This is evident from the fact that the adopted Child of a Muslims does not figure among his heirs specially mentioned in the Holy Quran. This implies that customarily adopted son does not become an heir to the heritable property of his adopted father.
Conclusion :-
It can not be said that the Holy Quran Prohibit adoption amongst Muslims in absolute terms. And the Custom of adoption amongst Muslims has been held also the Valid Muslim Personal Law (Shariat) Application Act, 1937 does not abrogate the custom of adoption prevailing amongst Muslims.
It is evident that the role of custom amongst the Muslims, unlike the Hindus, is practically non-Consequential. A custom where is in derogation of Muslim Personal Law, is of no effect. Accordingly the status of an adopted son, even when it is fully established under a custom, is no better than Stranger, because he does not become ipso facto and heir of his deceased adoptive father. Realizing the relevance of the institution of adoption, especially in the case of Child less Couples, the customarily adopted son needs a better deal in the realm of Muslim Personal Law, which can be remedied and improved only through statutory intervention.
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Writer is Lecturer, P.G. Deptt. of Law, Patna University, Patna.
References
1. Justiee M. Hidayal-ullah, Muslim Law
2. B.R. Verma- the Mohammadan Law in India & Pakistan (1962)
3. The Holy Quran (S.8, A.72)
4. The Holy Quran by Mushaf Al madinah An Babawiyab edicted by presidency of Islamic Researehers IFTA at 1144.
5. Khair Ali Shah V. Imam Shah, AIR 1936 Lahore 80
6. Usman V. Asat, AIR 1925 since 207
7. Abdullah Khan V. Ginda 11 I.C. 670
8. Mst. Khatgi V. Abdul Razzaq, AIR 1977 J& K 44
9. Ayub Sha Amirsha Jamadar V. Babadal Mahabat Danawode AIR 1938 Bobm
10. Abbasali Shah V. Mohammad Shah AIR 1951 Madhya Bharat 92
11. Abdul Hakim & others V. Gappu Khan, SB CSA No. 115/1950 decided on 22.12 1954
12. Ibid
13. 1974 WNN (UC) 8
14. Mst. Bibi V. Syed Ali, SB, SA No. 132/1990 decided on 12.9 1997
15. AIR, 1956 Mad. 244
16. AIR, 1984 Mad. 7
17 69 ITR 45
18 AIR 2005 Noc 341 (J&K)